It will become harder for consumers to sue their banks or companies like Equifax

Consumers may have a harder time suing financial companies they feel have wronged them.

The Senate voted Tuesday night to overturn a rule the Consumer Financial Protection Bureau worked on for more than five years. The final version of the rule banned companies from putting “mandatory arbitration clauses” in their contracts, language that prohibits consumers from bringing class-action lawsuits against them. It applies to institutions that sell financial products, including bank accounts and credit cards.

Consumer advocates say it’s good news for companies like Wells Fargo
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or Equifax
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which have both had class-action lawsuits filed against them, and bad news for their customers.

“By forcing consumers into secret arbitration, corporations have long enjoyed an advantage in the process, and victims have often been precluded from sharing their stories with the press or law enforcement,” said Vanita Gupta, the president and CEO of the Leadership Conference on Civil and Human Rights, a group of advocacy organizations based in Washington, D.C.

The Senate vote was “a giant setback for every consumer in this country,” said the CFPB’s Director Richard Cordray. “It preserves a two-tiered justice system where banks can have their day in court but deny their customers the same right.”

Here’s what consumers should know:

What is the forced arbitration rule?

Many consumer advocates, in addition to the CFPB, favored the bureau’s rule.

Mandatory arbitration clauses typically say that companies or customers must resolve disputes through privately appointed individuals known as arbitrators, but not through the court system, allowing companies to save time and money and avoid negative publicity. When consumers sign forced arbitration clauses, which they may not realize are included in contracts, they waive their right to participate in a class-action lawsuit against companies.

Why are class-action suits important?

Cordray had argued that class-action suits are one of the few courses of action consumers can take against companies, particularly when the arguments are over relatively small amounts of money.

Only about 2% of consumers with credit cards said they would consult an attorney or consider formal legal action to resolve a small-dollar dispute, according to the CFPB. Separately, 89% of consumers said they wanted the right to participate in class-action suits against their banks, when the Philadelphia-based nonprofit Pew Charitable Trusts surveyed about 1,000 consumers in 2016.

Why did lawmakers vote for mandatory arbitration?

Those who opposed the rule, including a group of Republican senators led by Mike Crapo, a senator from Idaho who is the chairman of the U.S. Senate Committee on Banking, Housing and Urban Affairs, said the CFPB is too powerful. He had also criticized the CFPB’s research process in creating the rule.

The Senate's vote against the CFPB’s rule “is a win for consumers,” said Rob Nichols, the president and CEO of the trade group American Bankers Association. “As we and others made clear in our multiple comments to the CFPB, the rule was always going to harm consumers and not help them.”

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How did the CFPB rule impact the Equifax fallout?

Mandatory arbitration became relevant during the recent controversy over credit agency Equifax, which experienced a data breach that impacted more than 145 million U.S. adults’ personal data. Consumers noticed that when they signed up for Equifax’s monitoring services after the breach, the company originally had a forced arbitration clause in its contract.

After consumers and advocates raised alarm, the company removed that language. It was “a prime example of why we need the CFPB rule,” said George Slover, senior policy counsel at Consumers Union, a consumer advocacy group based in Yonkers, N.Y.

Will it impact class-action suits against Wells Fargo?

Consumer advocates also often cite the controversy around Wells Fargo opening bank accounts in customers’ names as an argument in favor of a forced arbitration rule. In the aftermath, consumers joined class-action lawsuits against the bank, and wouldn’t be able to if they were prohibited by a contract.

But those against the rule said the CFPB was too slow to identify the problems at Wells Fargo, turning that case into evidence of the CFPB’s ineffectiveness. The CFPB did not immediately respond to MarketWatch’s question about whether the Senate’s vote will impact existing class-action suits against companies.

But Lisa Gilbert, the vice president of legislative affairs at Public Citizen, a nonprofit based in Washington, D.C., said the Senate vote shouldn’t impact cases that are already ongoing. However, there will “certainly” be more forced arbitration clauses in contracts in the future, and fewer cases brought against companies, she said.

What can consumers do now?

“Senate Republicans voted to give companies like Wells Fargo and Equifax a get-out-of-jail-free card,” said Karl Frisch, the executive director of Allied Progress, a consumer watchdog organization based in Washington, D.C. “This repeal will hurt millions of consumers.”